One substantial difference between a tort and a delict: the former is a product of the common law albeit now somewhat modified by statute, whereas the delict, as with most things civil law, is purely a creature of statute.

American jurist Edward Kionka writes:

"Tort is an elusive concept (and) has defied ... attempts to formulate a useful definition.... The one common element is that someone has sustained a loss or harm as the result of some act or failure to act by another.

"Tort is perhaps the last bastion of the common law.... Tort law remains uncodified and in large part unaffected by statute."

Other jurists use this definition:

"A civil wrong, other than a breach of contract, which the law will redress by an award of damages."

Another, this definition:

"The breach of a duty, primarily fixed by law, towards persons generally which is redressible by an action for unliquidated damages."

Tort refers to that body of the law which will allow an injured person to obtain compensation from the person who caused the injury, the person causing the injury and committing the tort referred to at law as a tort-feasor.

In Hall v Herbert, Canada's Supreme Court stated:

"It is difficult to define the nature of a tort. Indeed one of the greatest writers in the field, W.L. Prosser has expressed the opinion that it should not be defined.

"Perhaps it is easiest to begin by saying what it is not.

"A tort is not a crime. Although criminal law and tort law grew from the same roots they are today quite distinct and different. Criminal law is designed to provide security for the citizens of the state. It attempts to define that conduct which society finds abhorrent and therefore necessary to control. Those who commit crimes are prosecuted by the state and are subject to punishment which reflects the state's or society's abhorrence for the particular crime.

"Nor is the law of torts contractual in its nature. Contract law seeks to enforce the rights which arise out of an agreement whose parties have voluntarily agreed to be bound by its terms. The law of contract seeks to enforce the terms of the agreement specifically or provide compensation for its breach. Nor can torts fall under the title of quasi-contractual relief. That remedy seeks to prevent unjust enrichment that might, for example, arise out of payment of money under mistake. The law of tort covers a much wider field than does contract.... It provides a means whereby compensation, usually in the form of damages, may be paid for injuries suffered by a party as a result of the wrongful conduct of others."

Every person is expected to conduct themselves without injuring others. When they do so, either intentionally or by negligence, they can be required by a court to pay money to the injured party (damages) so that, ultimately, they will suffer the pain cause by their action.

Tort also serves as a deterrent by sending a message to the community as to what is unacceptable conduct.

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Duhaime Lawisms

Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
Criminal Code, Canada

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.